“Mediation In Indian Judiciary: Types, Relevance, And Statutory Framework”

Mediation as a Cornerstone of Judicial Reform in India:-

During the National Judicial Conference on Mediation and Information Technology, the President highlighted the significance of mediation as an essential component of the judicial process in India. Judicial mediation refers to a voluntary, party-centric process in which a neutral third party, known as the mediator, assists the disputing parties in reaching a mutually agreeable settlement for cases pending before courts. This process empowers the parties, allowing them to retain control over the outcome and withdraw at any point, thereby fostering a more amicable and less adversarial approach to dispute resolution. With the enactment of the Mediation Act, 2023, India has taken a transformative step to formalize and encourage mediation by providing a robust legal framework that covers pre-litigation, online, and community mediation, and by ensuring the enforceability of mediated settlement agreements. The Act also establishes the Mediation Council of India, introduces clear guidelines for mediator appointments, and underscores confidentiality, making mediation a more accessible, efficient, and credible method for resolving civil and commercial disputes in the country

Historical Context and Evolution

Traditional Roots: Informal community mechanisms for resolving disputes, such as Panchayats and Mahajan’s, have existed in India since the Vedic period.

Legal Integration: Mediation became part of statutory law with acts like the Industrial Disputes Act, 1947, and the Legal Services Authorities Act, 1987 (which established Lok Adalat’s).

Contemporary Recognition: Section 89 of the Code of Civil Procedure (CPC), 1908, formally introduced mediation into court procedures, allowing courts to refer cases for mediation to alleviate judicial backlog.

Legal Framework Governing Mediation

Existing Laws: Mediation in India has primarily operated under the CPC 1908 and the Arbitration and Conciliation Act, 1996.

Recent Advancements: The Mediation Act, 2023 marked a significant legislative milestone, establishing a comprehensive legal infrastructure for mediation, including the creation of the Mediation Council of India and formal mechanisms for both online and community mediation.

Key aspects of judicial mediation in India:

·      Voluntary and Party-Centered:

Mediation is a voluntary process, and parties can choose to participate or not. They also retain control over the outcome and can withdraw from mediation at any time before a settlement is reached.

·      Neutral Third Party:

A mediator facilitates communication and negotiation between parties, guiding them towards a mutually agreeable solution. They don't impose a decision but rather help the parties find their own resolution.

·      Confidentiality:

Mediation proceedings are confidential, and any information shared or statements made during mediation cannot be disclosed in other legal proceedings without the parties' consent.

·      Efficiency and Cost-Effectiveness:

Mediation is often a faster and less expensive way to resolve disputes compared to traditional litigation.

·      Legally Binding Agreements:

Settlements reached through mediation can be legally binding and enforceable as court judgments, providing a clear and final resolution to the dispute.

·      The Mediation Act, 2023:

This Act aims to create a statutory framework for mediation, promoting its use and providing for online mediation and other modern approaches.

·      Scope of Mediation:

Mediation can be used for various civil and commercial disputes, including those related to property, family matters, contracts, and more.

·      Pre-Institution Mediation:

The Commercial Courts Act, 2015, along with the Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018, mandates pre-institution mediation for certain commercial disputes.

·      Referral to Mediation:

Courts can refer cases to mediation, either with the consent of the parties or, in some cases, even without it if deemed appropriate.

Enforcement of Settlement Agreements:

Agreements reached through mediation can be enforced by the court in the same manner as a court judgment.

What is Mediation?

• Mediation is a voluntary, binding process in which an impartial and neutral mediator facilitates disputing parties in reaching a settlement.

A mediator does not impose a solution but creates a conducive environment in which disputing parties can resolve all their disputes.

• Mediation is a tried and tested alternative method of dispute resolution. It has proved to be a great success in the cities of Delhi, Ranchi, Jamshedpur, Nagpur, Chandigarh and Aurangabad.

• Mediation is a structured process where a neutral person uses specialized communication and negotiation techniques. Litigants participating in the mediation process have unequivocally endorsed it.

• It is a settlement process whereby disputing parties arrive at mutually acceptable agreements.

• Other than mediation there are some other dispute resolution methods such as Arbitration, Negotiation and Conciliation.

Who can be a Mediator?

• Any person who undergoes the required 40 hours training stipulated by the Mediation and Conciliation Project Committee of the Supreme Court (SC) can be a mediator.

• He also needs to have at least ten mediations resulting in a settlement and at least 20 mediations in all to be eligible to be accredited as a qualified mediator.

What is the Role of a Mediator?

• To be Impartial and Neutral.

• Manage interaction between the parties

• Facilitate communication between the parties.

• Identify barriers to an agreement.

• Identify interests of the parties.

• Develop terms of agreement.

What is the Significance of Mediation?

• Quick And Responsive.

• Economical.

• There is no extra cost.

• Harmonious settlement.

• Creating solutions and remedies.

• Confidential and informal.

• Parties controlling the proceedings.

Types of Mediation in India?

In India, mediation can be broadly categorized into court-referred and private mediation. Court-referred mediation involves cases pending before a court, where the court itself directs the parties to mediation. Private mediation, on the other hand, is used for resolving disputes, both before and during litigation, through the services of a qualified mediator on a fee basis. Additionally, mediation can be further classified by approach: facilitative, evaluative, and transformative mediation.

1. Court-Referred Mediation:

Process:

The court, under Section 89 of the Code of Civil Procedure, 1908, refers a pending case to mediation for a more amicable resolution.

Purpose:

This approach is often used in matrimonial disputes, including divorce cases, or any other case where the court deems it suitable.

2. Private Mediation:

Process:

Parties voluntarily engage a mediator to help them resolve their dispute, either before or after initiating legal proceedings.

Parties:

Private mediation can be utilized by individuals, businesses, or even government entities.

Purpose:

It offers a confidential and potentially faster way to resolve disputes compared to traditional litigation.

3. Mediation Approaches:

Facilitative Mediation:

The mediator helps the parties communicate, understand each other's perspectives, and negotiate a resolution.

and weaknesses of each party's case and may offer suggestions for a potential settlement.

Evaluative Mediation:

The mediator provides an assessment of the strengths and weaknesses of each party's case and may offer suggestions for a potential settlement.

Transformative Mediation:

The focus is on empowering the parties to understand each other's needs and interests, fostering a more collaborative resolution.

What are some Challenges to the Process of Mediation?

• Lack of Codification: In January 2020, the SC in MR Krishna Murthi v. New India Assurance Co. Ltd pointed out the urgent need for enacting a uniform legislation for mediation in India.

• Apprehension towards mediation & Lack of Awareness – Mediation has never garnered sufficient reception among the legal fraternity.

° In order to popularize mediation as a dispute resolution mechanism, training sessions and seminars should be conducted to familiarize judges with the benefits of mediation.

• Infrastructural Concerns and Quality Control– Improved emphasis on mediation will directly increase the workload on mediation centers which lack administrative strength.

° This can lead to the languishing of cases that go against the basic tenet of mediation i.e. fast resolution of disputes.

° To tackle this, the practice of mediation should be professionalized in India.

• Inconsistency between existing laws on Mediation– The Supreme Court in a case stated that the terms ‘mediation’ and ‘conciliation’ are synonymous with each other.

° Contrastingly, the language of Section 89 of Code of Civil Procedure (CPC), 1908 shows that the legislative intent behind the section was to differentiate between mediation and conciliation.

Thus, the existing ambiguity has created a lot of vagueness in the process of mediation.

What are the Legal Provisions Related to Mediation?

• Mediation in India is primarily governed by two legislative acts viz. the CPC 1908 and the Arbitration and Conciliation Act, 1996 (ACA).

• There are many other statutory provisions that make mediation a compulsory prerequisite to filing a suit in court. Some of these statutes are:

° Industrial Disputes Act, 1947

° Companies Act, 2013

° Micro, Small and Medium Enterprises Development Act, 2006

° Hindu Marriage Act, 1955

° Special Marriage Act, 1954

° Real Estate (Regulation and Development) Act, 2016

° Commercial Courts Act, 2015

° Consumer Protection Act, 2019

Way Forward

• The Covid-19 pandemic has increased the prominence of mediation as a means for dispute resolution. The plethora of cases initiated by the pandemic warrants a swift and effective redressal and mediation can be the perfect solution.

• However, there are a lot of challenges that restrict the effectiveness of mediation. The existing framework of having different mediation rules for different High Courts has further contributed to the element of uncertainty in the mediation process.

• Thus, the most important step towards recognizing mediation as an effective tool for resolution would be to enact a statute solely for mediation.

° Mediation Bill, 2021 should be passed with all necessary inputs from all the stakeholders as soon as possible.

Conciliation and Mediation

Justice Dr. M. K. Sharma Judge,

High Court of Delhi

Conciliation and mediation are recognized as two important and effective modes of alternative dispute resolution system. These are considered as effective and meaningful alternatives to litigation through courts for resolution of disputes through the guidance and assistance of a neutral and impartial third party.

This method of resolving dispute through mediation and negotiation is, however, not foreign in our country. Village Panchayats and Nyaya Panchayats have been functioning in the villages and many disputes at the village level have been settled through conciliation and mediation in these

Panchayats for a very long time. But such remedy through Panchayat was sought for more as convenience as they are more easily approachable than the Courts which are located far away from the villages.

However, with the passage of time there has been overcrowding in numbers of litigation. There has also been delay in disposal of litigation for various reasons like shortage of judges and judicial officers, shortage of infrastructure and increase in population. Better understanding and awareness of their rights by the general public has also led to filing of more cases in the courts. Accordingly, it was thought that as there is a heavy traffic in the main thoroughfare, a bye pass is to be opened to ease the pressure in the main thoroughfare and consequently the device of alternative dispute resolution system like conciliation and mediation has been carved out. This form or process is settlement geared and is also definitely cost saving. It also helps the parties to adopt a problem-solving approach to find out a “win win” outcome. When a dispute is resolved through this process, there is no winner or loser for the parties agree to the solution whereas in a litigation there is always a loser and even the winner of the litigation goes back home at times feeling fully exhausted physically, mentally and also financially.

Under the Code of Civil Procedure, 1908 express provisions are contained in the form of Order XXXII A, Rule 3 whereunder a duty is cast upon the courts to make efforts for settlement in suits relating to matters concerning a family. Similarly, under Order XXXVII Rule 5B, a duty is cast upon the court in a suit against the government or a public officer to assist in arriving at a settlement.

“ A mediator or conciliator must lead parties into the gray shaded areas of a problem where a variable range of outcomes becomes available to achieve a mediated consensual resolution. It is the skill with which this “grey area” is negotiated that the success of Part III of the Act will depend.

Lawyers must advise their clients to use Part III more often - they must educate and explain clients on the benefits of conciliation.”

Courts and Alternatives

Justice S.B. Sinha Judge,

Supreme Court of India

The adversarial system, which is one of the great legacies of the British rule in India, has worked reasonably well for centuries. However, in view the docket explosion, the faith and confidence in the Judiciary has undergone substantial erosion. The functioning of the system is also being questioned in different quarters having regard to the procedural wrangles, enormous costs and inordinate delay involved in it.

Justice delivery system in India is bursting at the seams and may collapse unless immediate remedial measures are adopted not only by the judiciary but also by the legislature and the executive. The reasons for the present situation are not far to seek. Firstly, there is a qualitative and quantitative change in the nature of litigation. Not only have new and diverse areas of litigation have cropped up, there is also immense increase in the quantum of litigation leading to what is often called "docket explosion". Secondly, litigation against the State and the State-like entities has grown substantially, and prompt and complete compliance by the State of the orders by way of writs, etc., would be absolutely necessary for bringing the litigation to a conclusion. Thirdly, despite an increase in the number of courts and tribunals all over the country not only in the traditional areas of civil and criminal litigation but also in other fields like consumer protection, service matters, etc., no solution for early resolution of dispute has been found out. But the increase in the number of courts and tribunals is not enough to deal with the increase in litigation by geometrical proportions. Often, we find that not only there is no proportionate growth in the number of courts and judges, but even the existing vacancies remain vacant for a long time for one reason or the other.

The programs enable a member of the public to contact the court in person or by telephone, with a complaint or dispute. A preliminary analysis will then be made of the case in order to be able to recommend which dispute resolution process is most suitable to resolve it. Various criteria will be applied including, for example, the kind of issues involved, what kind of compensation is likely to be awarded if successful, whether witnesses or other evidence will be needed, whether rights need to be protected and what services are available. The inquiring party is then advised about the processes that might be most appropriate to the case and is given relevant referral details, which may be to departments within the court, or may perhaps be to outside agencies.

Successful Mediation in Matrimonial Disputes Approaches, Resources, Strategies & Management

Justice Manju Goel Judge,

High Court of Delhi

Part – I

Family and matrimonial mediation is a process in which a mediator, an impartial third party, facilitates the resolution of family disputes by bringing the participants to voluntary agreement. Mediation is the very basis of every society to maintain harmony in the social fabric. In the context of matrimonial dispute, the mediators are often performing the role of counsellors and conciliators and in this paper the terms are used as interchangeable terms. Even before mediation was talked about for solution of disputes in courts for reducing the pendency of cases in courts, mediation for matrimonial disputes were in existence. Initially such counsellors were benevolent elders and were available to the parties right in the families. Elders or others who commanded respect from disputing parties became the mediators. It may be mentioned that the project of the Tata Institute of Social Sciences to run a counselling center at Bombay was in fact a fore–runner of the family courts in Bombay. The counselling center has merged into the family court system and is looked upon as a model system for a family court. Section 9 of the Family Courts Act, 1984, Section 89 and Order XXXII-A of the Code of Civil Procedure, 1908 make it obligatory for the court to give a fair chance to a conciliated or negotiated settlement before adjudication is embarked upon. Section 23 of the Hindu Marriage Act, 1955 focuses on judge's role in attempting a reconciliation.

Part - II

Types of Matrimonial Problems - Diagnosis and Management

From the narrations of the parties an assessment of the nature of the dispute between the parties can be gauged. However, a mediator or a counsellor has to go deeper into the problem to diagnose the real factor which ails the relationship. He is likely to find that the real factor or the cause is one or the other of the types mentioned below.

Type – I

Very often which is looked upon as an act of cruelty may be a perception of an egoist person. When the ego or the sense of respect is hurt, the reaction of different people may be different. The reaction may be in the form of physical violence. At certain other times it may take the form of criticism or looking for faults where none exists. Criticizing the marriage gifts may sometime be a reaction to some behavior offending the ego of the husband or his mother. The marriage counsellor, therefore, after some sittings has to decipher whether the real questions is actually a greed for more dowry, a critical behavior of a man or woman, or a reaction to the ego or pride of a person being hurt. The commonest problems arise out of conflicts of such ego where for every small thing each of the two partners to a marriage finds faults with the other partner. There are no real issues yet a constant threat to peace. It may not be proper to categories the parties as victimizer & victimized. The mediator must develop a clear picture of notional profiles of the parties which will help him involve the parties into a dialogue which will lead to discovery of a common ground.

Type – II

Behavioral discover like violence or addiction or abusive language or total lack of care displayed by one party is also a cause of matrimonial discord. These are character traits and are deeply embedded in a person. Since these traits have become the nature of a person, these will have their impact in the relationship between the husband and wife. Once these traits cross a particular level of severity a problem in the peace in the matrimonial home may arise. In such cases the addictive persons may be treated for behavior modification either by the mediator or by some professional.

Type – III

Very closely related are certain psychological problems. Common examples are suspicious nature, a desire to protect or guide in smallest of situations or in minutest details. Some people have the tendency of correcting the other partner all the time giving rise to constant frictions. Suspicious may be genuine or may be pathological. Pathological suspicious do not have rational basis but the suspecter presents the stories in so cogent a manner that it becomes difficult to disbelieve. If the suspicious are of pathological nature the cases can be referred to specialists. Generally suspicious nature is the symptom of paranoia/paranoid schizophrenia.

Type – IV

There are situations in which sacrifice and adjustment demanded of the other partner is higher than in normal circumstances. For example, one party may have to perform night duties or longer hours of work which calls for acceptance of the situation by the other party. Even in military and paramilitary forces husbands may be away for months. In such circumstances unless there is loyalty in each other and total manifest support the conjugal life may fall into jeopardy. The family and work have to co–exist and both must have their due share of attention. If the balance tilts in favor of work or one partner views it as too much attention to work a matrimonial conflict may arise. The classical example is of Napoleon. Even being the most faithful husband, both of his marriages failed.

Type – V

There are situations where marriage is arranged by two families like a business deal. The two neighboring land owners settle a deal on land as part of a marriage deal between daughter of one party to the son of the other party. The parties to the marriage are really pawns. How long the marriage will subsist will depend upon how long the treaty or deal between the two land owners will survive. Similar situations arise when two sisters of a family are marries to two brothers or brother and sister of a family are married to sister and brother of another family. If one marriage runs into difficulty for some reason, the other automatically collapses. In these situations, the counsellor may have to look beyond the couple and may have to try to make peace between the others.

Conclusion

The first task of the marriage counsellor, as stated above, is to diagnose the problem. Having diagnosed the next step is to decide whether the counsellor or mediator should endeavor to bring about a reconciliation or to attempt a separation. Some of the aforesaid problems pose an immediate solution of separation. However, for the parties, at times, separation may not look to be very easy. Although, the society is increasingly accepting the fact of failure in marriage consequences attached to a divorce call for a lot of attention and cannot be left to themselves. The first thing the counsellor has to do in such situations is to help the parties to arrive at a decision to break the marriage. Sometimes, it may be easy and sometimes it may not be so easy. Having done so, the mediator then has to look to the terms and conditions of the divorce which may include the question of maintenance, custody of children, arrangement regarding property, etc.

Here are some questions and answers on the topic:

1. Question: What are the two primary types of mediation commonly recognized and practiced within the Indian judiciary?

Answer: The two primary types are court-annexed mediation, where the court refers parties to mediation, and private mediation, where parties independently choose to mediate their dispute.

2. Question: Beyond reducing court backlog, what is a key relevance or benefit of mediation in the Indian judicial system for the disputing parties themselves?

Answer: A key relevance is that mediation empowers parties to arrive at mutually agreeable solutions, fostering better preservation of relationships and providing more flexible and customized outcomes compared to traditional litigation.

3. Question: Identify one significant statutory provision or act that provides a framework for mediation in India.

Answer: One significant statutory provision is Section 89 of the Code of Civil Procedure, 1908, which empowers courts to refer disputes to alternative dispute resolution methods, including mediation. Additionally, the Commercial Courts Act, 2015, mandates pre-institution mediation for certain commercial disputes.

4. Question: Is the outcome of a successful mediation in India generally binding on the parties?

Answer: Yes, if a settlement is reached through mediation and is then recorded by the court or forms part of an arbitral award (in cases referred to arbitration after mediation), it is generally binding and enforceable upon the parties.